"Are land rights human rights?" Online debate on the Human Rights Day -10th December 2011

"Are land rights human rights?" Online debate on the Human Rights Day -10th December 2011

17 novembre 2011 to 20 janvier 2012

Clos

Française ci-dessous / Castellano abajo

Dear Friends in Solidarity,

This year’s Human Rights Day – on 10th of December, Ekta Parishad (in its yearlong cross-India Samwad Yatra tour) will be celebrating the day among a prominent community of landless dalits in central Maharastra.

We would like to start an online debate with the Land Portal community to know what you see as the main land and livelihood problem in your country. Please, feel free to answer the questions below or post any comments which could be relevant to the topic.

1. Are land rights (for the poor) human rights in your country? 2. Are the land violations (such as land grabbing) seen as land rights or otherwise? Are there interesting cases? 3. Are there many human rights defenders that are suffering a loss of civil rights because they are working on the land issue?

The result of this discussion will be used by South-South Solidarity to compile a report and share it on the December 10th human right event as a way of advocating people for the 2012 Global Land Movement campaign (www.southsoutsolidarity/globalmovement.org).

We need your contribution as these issues need to be telescoped to the national and international levels.

Commentaires

Yes land rights are human rights
Case from Mongolia
1. In 2005 one company comes to gold mining to local community area of Nariin hamar of Tsenker sum of Arkhangau aimak. It followed by pollution of water in two rivers, and clear cut forests, which impacted to local peoples’ right to use clean and safe water. Local people make strike as they rights are violated, it prolonged to many days, some people injured during the gun short s, but end of all these company was stopped its violated illegal land use rights, as there was none consultation during the EIA work.

No, land rights are not human rights – but land is a human right issue

Poul Wisborg (poul.wisborgADumb.no / p.wisborgADcgiar.org)

It is easy to sympathize with the protection of (some) land rights as human rights. Patterns of displacement and dispossession of people are rampant around the world, due to numerous causes and trends – land grabbing, urban development, industrial development, political abuse, ethnic strife (even cleansing), nature conservation, corruption and financial malpractices. One may reason that for people who lose their land, many other human rights are immediately threatened. ‘No land, no food’, a poster said. Their land tenure seems fundamental, the basis of their wellbeing and numerous rights. We find it arbitrary that development – for economic progress – is often allowed to overrule the rights and livelihoods of individuals and families. We want to give such land rights the ‘highest protection’, or inviolability, which is what, in principle, human rights give.

We ought to be very concerned about such trends of displacement and dispossession and we can use human rights in addressing them.

But in my view, land rights are not human rights and ought not to be turned into human rights.

1.Land rights are not human rights, because human rights are inalienable rights that every human being has by virtue of being human. Land rights are specific people’s rights to specific resources.

2.Unlike for food and water, we do not have a universal human need for land; and there is no particular reason to argue that everyone ought to have land, as one might argue everyone ought to have basic education or the right to freedom of expression (although these may not be ‘basic needs’).

3.It is wrong and risky to turn (some) land right into human rights, because that would sanction existing rights. But those rights may be based on historical injustices or they may stand in the way of justifiable social projects, such as land reform, strengthening of women’s rights, or planned expansion of a city, a railroad or a wilderness area.

4.Human rights are not for the poor, nor for the rich, but for everyone. The land rights of ‘the poor’, or the land rights of (poor) people in certain countries, do not deserve special protection as human rights, because it misconstrues the idea of human rights. The difficulty of deciding who is poor would fatally weaken everybody’s human rights protection. In addition, some of the protections of land rights that follow from human rights (discussed below) also belong to the rich. However, if we consistently protect those whose human rights are threatened when land is taken or changed – it will often benefit poor people. And, it is important to secure land rights for the poor, not only of, as noted by the Tirana Declaration quoted below.

5.Land rights are not currently given legal protection as human rights, although they are occasionally mentioned by human rights instruments, for example as being instrumental of the right to food, or of the autonomy of indigenous peoples. I have not made this a key point, since human rights instruments may be deficient: one could still argue a moral and political case for protecting land rights as human rights. As argued here that is a probably not good idea.

6.Poor people´s problems may be that both their land rights and their human rights lack adequate protection, but conflating the two would probably not add strength to either. Let’s say land rights were protected as human rights: when society determines which ‘land rights’ have now obtained such protection, many poor people would face the problem that their land rights do not meet the criteria. For example, statutory property rights with the protection of a title or other documentation might very well be given more protection that rights to access, use and manage land and natural resources, even though these are historically and socially recognized. In many contexts women’s use and control over land is given less legal protection. Thus, basic tenure insecurity and lack of social and governmental protection is not effectively addressed by declaring land rights to be human rights – rather, the rich and well protected might easily use it to add another layer of protection to their property rights, rights that in some cases ought to be appropriated for development or redistribution. (No society has been able to exist and change while regarding land rights as inviolable).

7.The human right to own property (in the Universal Declaration, Article 17) is not a right to specific pieces of property but (i) a general right to hold adequate property (adequate for human rights) and (ii) not to be arbitrarily deprived of property, that is, in a way that violates fairness and human rights. I believe this right seeks to achieve the same as I argued above, namely to promote the interests and needs that every human being has, and to provide some protection to property rights (the idea, the institutions, and specific rights), while not sanctifying any single right.

8.It is a good idea to see land tenure and land governance – including rights to land – as human rights issues, which is to say that land tenure and land governance affect and are affected by human rights, and ought therefore to be treated with the effects on human rights in mind. Land policy at all levels – such as the Voluntary Guidelines on land tenure governance currently formulated by the FAO – should affirm that human rights are at stake.

9.While it is much richer than can be accounted for here, I suggest that the interconnection of human rights and land rights has three main dimensions: (i) A point about protection: Human rights, when effectively protected and realized, increase the protection of land rights; (ii) a point about human ends: Land rights and tenure security, if properly designed and governed, enhance many human rights as ends; and (iii) a point about process (or ‘how-to’): Human rights tell us about how we ought to govern (and change) land rights. These three are interconnected and reinforce one another in the creation of fair, democratic and sustainable land systems.

10.The point about protection: Human rights, when effectively protected and realized, increase the protection of land rights; so, if you remove gender, ethnic, racial and age discrimination, you will already have done much to enhance the security and distribution of land rights, for the right reasons (meaning that other things being equal, you will have strengthened the position of women more than men, the ethnically disadvantaged more than the privileged, the poor more than the rich, and so on).

11.The point about human ends: Land rights and tenure security, if properly designed and governed, enhance many human rights: the right to a home and safety; the right to integrity of the family; the right to food and water; the rights to employment and livelihood. Since these are human rights, we should consider them the most weighty concerns when we assess the consequences of appropriating or changing land rights, for example land grabbing. These consequences and ends must be taken into account whether or not peoples land rights are legally well protected.

12.The point about process (or how-to): Human rights tell us about how we ought to govern (and change) land rights. For example, to promote human rights to food, water and livelihood, it may be wise to expropriate and redistribute land. Yet, this does not extinguish the human rights of the (rich or not so rich) users or owners of the land in question. They have rights to political participation, to non-discrimination on the basis of race or gender, and to equality before the law. These rights help them, in a fair way, to defend the rights to livelihood and food; they make everyone’s property rights stronger but not so strong that they withstand any human-rights based claim: for their land rights are not human rights, they are not inviolable.

13.Ideas about the relationship between land rights and human rights – land as a human right issue – leave a lot of room for different interpretations, political choices and practices (and conflict!). I still think they provide a better start than thinking of ‘land rights as human rights’ – which might protect land rights that do not deserve protection and fail to protect human interests and practices that lack legal recognition but are very important for the human rights of the holders – women, men and children who often derive much more from land than societies and governments care to acknowledge and deserve much better land systems and practices – stronger land rights and stronger human rights.

Of course Land is a Human Right. Well, I guess it all depends on which side of the fence you stand on. On the one hand, when Land is treated as a Human Right, Life is respected and on the other hand when Land is treated as a commodity Life tends to become a commodity. Money or Life - you choose.

1. Right to property2. Right to subsistence3. Right to development4. Right to foodetc... so many

Explicitly for indigenous and tribal peoples international human rights laws and jurisprudence affirm their rights to the lands, territories and natural resources that they traditionally own, occupy or otherwise use.

In the Inter-Amercan Court judgments the right to lands and territory is recognised not only through the right to property but conjointly through the right to self-determination.

New economic and liberalised industrial policies pave way to gross human rights violations in a rapidly growing world. As the cases of violations go up, the relevance of having organizations to take up fights for human rights has also increased globally in the last couple of years.

Farmers,including tenants and land owners both, remain vulnerable to forced eviction and mental/physical abuses of their basic rights. Where people have obtained land under the land reform programme, they have often struggled to make effective use of it, due to poor settlement planning and lack of appropriate support from government and private agencies.

Small examples such as land not even available for burial grounds, place for sanitation systems clearly identify how basic human rights are being violated.

The exploitation of the earth (the land) and the exploitation of indigenous peoples have emerged and developed from the same mind-set and world view. (see for example, http://neweconomicsinstitute.org/publications/lectures/Mohawk/John/How-t...) One way to oppose that worldview is with the language of rights and in that context it is certainly true that land rights (the right to use the earth for sustenance) and human rights (e.g., the right to sustenance) are the same. Asserting the rights to justice for indigenous peoples is certainly a first and necessary step to prevent the injustice that is occurring now. On a deeper level, we need to learn from indigenous people not to think of 'rights' at all, however and learn to live in a deeper harmony with the earth on the basis of needs and self-limitation.

Statement by Ekta Parishad on International Human Rights Day on the need to make Land-Rights as a Human Right

Jansatyagraha is a year-long process organized by Ekta Parishad and supported by 2000 organizations to bring together landless dalits, adivasis, fisherfolks, women, urban poor and sexually vulnerable groups of India to demand control over land and livelihood resources. During this year, social activists representing different struggles will travel across India to highlight the campaigns that are happening on the ground and engage the state and other concerned actors in a process of dialog to find solutions to the problems of deprived communities. This process will culminate in a 35-day footmarch by 100,000 people from the deprived communities covering a distance of 350 kilometers to apply pressure on the state to bring about policy changes. The larger question that Jansatyagraha will raise will be related to people's control over land and livelihood resources in order to fight poverty as opposed to the exploitation of these resources by the corporate houses for profit. The movement is an effort to question the globalization and neo-liberal framework for development and to propose a policy framework which promotes a development model that ensures justice and equity. In this connection, Jansatyagraha 2012 is in full support of the 'Declaration of Peasant Rights- Women and Men' proposed by Via Campesina to the UN body. To address global poverty, rights over land and livelihood for landless communities cannot be separated from the rights of peasants.

The spike in farmer suicides around the world is a clear indicator of the failure of the current model of development. The recent economic crisis confirms the failure of the current development paradigm in ensuring just and equitable development but an alternate paradigm has not yet emerged. Rights over land and livelihood resources will be a step towards creating a just and equitable world order. International bodies like the UN need to play an important role in facilitating this process of developing the alternative paradigm by not only adopting the declaration by Via Campesina but also extending it to make rights over land and livelihood resources for marginalized communities in rural areas and the rights for a decent place to live for urban and rural poor as a fundamental human right. Such an international framework will support the work of social activists in persuading their respective governments to create policy and implementation frameworks that provides deprived communities with opportunities to take control over their lives and live a life of dignity and self-respect. Jansatyagraha appeals to human rights activists around the world to take up the issue of people's control over land and livelihood resources as a human right as this will enable us to defend other human rights.

Jansatyagraha would like to make a special mention of the targeting by the state of social activists and human rights defenders who are trying to defend the economic, social and cultural rights of deprived communities. On one hand, people are losing their livelihood resources and on the other, the defenders are prevented from defending the rights of marginalized. This needs to be immediately addressed if the rights provided by the respective constitutions and the various conventions formulated by international bodies like the UN have any chance of becoming a reality in the lives of marginalized communities.

It is obvious that Land is a basic human right. Just by observing the things created by Man and those created by God (Life, Nature, etc...) it is transparent that every living being has an inherent right to Land - space to build a home, raise a family and supply the basic necessities of Life. Every single animal on this planet just inherently seeks a place to create shelter for the purpose of bearing young as well as territory for gathering food. Freedom to access Land for satisfying the basic needs of Life is a Law contained within Creation and that can be seen just through observation. It is a fundamental Law of the Creator and expressed through Creation.